All the King's Drones

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On January 23, 2009 -- or three days after he took office -- President Barack Obama began killing people deemed to be enemies of the United States. A little over a year later, his administration began offering not details of the killings but rather measured justifications of its power to kill. In public speeches, in interviews, and in some cases in articles informed by leaks from the President's closest advisors, the Obama Administration has spoken to American citizens about the legality of -- among other things -- killing, without trial, American citizens determined to present a threat to other American citizens.

We know, then, what the Administration sounds like, when it's talking to us about killing, because from the start it has been remarkably consistent in this regard, and has presented killing as a solution to a very modern problem. Since the attacks of 9/11, the United States has been at war with Al Qaeda, a non-state actor that continues to plot against us to this day. Faced with an asymetrical threat, the United States has responded with a technology uniquely suited to "disrupting and degrading" Al Qaeda's leadership while preserving our morals and Constitutional principles -- drones. A killing caused by a drone strike is not like a killing caused by conventional weapons; it is more surgical, more precise, more calibrated, more sparing of civilians, and hence, more moral. Indeed, the technology available to the United States in its war with Al Qaeda allows for such fine moral discrimination that we are morally obligated to use it, and use it we have, in the killings of approximately 3000 people.

So yes, we know what the Administration sounds like when it's speaking to us about killing. What we have never heard -- what we have not been permitted to hear -- is what the Administration sounds like when it's speaking to itself. That's why the ACLU and the New York Times have sued to make the Administration turn over the classified memorandum in which the Office of Legal Counsel argued for the legality of "targeting" Anwar al-Awlaki, the American citizen turned Al Qaeda leader. That's why 11 senators wrote a letter to the White House suggesting that they might hold up the confirmation of John Brennan as CIA director if the OLC's memorandum is not at last made available to them. And that's why the "white paper" leaked last night to NBC News is so important: though it offers only a summary of the OLC memo, it also offers, for the first time, an inkling of what the king's ministers are whispering in the king's ear.

And I do mean "king," because anyone who takes the time to read the leaked white paper will be struck by how ancient, how almost Shakesepearan are its concerns. For all the Obama Administration's efforts to characterize "targeted killing" as a modern solution to a modern problem, the white paper suggests that its real quandary with regard to citizens who have taken up with the enemy is as old as power itself: how to eliminate them without being accused of murdering them. Much has been already been made of the white paper's expansive notions of "imminent threat." And much will be made -- or should be made -- of the white paper's advocacy of the position that the only person qualified to decide whether a targeted citizen's rights to due process are being violated is the "informed, high-level official of the United States government" who has decided to target him. But what's most striking about the white paper is that it mentions, for the first time, the context in which the pre-emptive killing of targeted individuals must necessarily take place, and that is the context of murder and assassination.

A lethal operation against an enemy leader undertaken in national self defense or during an armed conflict that is authorized by an informed high-level official...would fall within a well-established variant of the public authority justification and therefore would not be murder.

Such an operation would not violate the assassination ban in executive order No. 1233 ... A lawful killing in self-defense is not an assassination.

That the white paper acknowledges the possibility that "an informed, high-level official" who has selected an American citizen for "targeting" might be coming up against the oldest moral prohibition of all doesn't mean, of course, that he has stepped over the line and violated it. What it does mean is that the shade of murder and assassination has always loomed over the Lethal Presidency of Barack Obama, and the Lethal Presidency knows it. The white paper offers a legal opinion, not a moral one, but the questions that it tries to answer are moral indeed:

Do "informed, high-level officials" have the power to kill their own citizens?

Are "informed, high-level officials" acting in the interests of the state ever liable to the accusation that they have committed murder?

These are the moral questions that the Constitution was written to address by means of a legal framework. The leaked white paper seems to address them in a different way, in a kingly way, in an almost pre-constitutional or perhaps post-constitutional way. And so when we read it, we recognize it for what it is: the kind of document that has always been proferred to power. The kind of document that always ends with somebody dead.